Will Wisconsin's Patents Block Embryonic Stem Cell Research?

The stem cell article by Jennifer Washburn in the AprilMerck v. Integra. Neither the Washburn nor Loring
12, 2006 issue of the Los Angeles Times mentionedCampbell articles discuss that patent infringement
Jeanne Loring, an embryologist at the Burnhamsuits against states and state bodies (such as
Institute in La Jolla: In 1999, Loring tried to launch aCalifornia's CIRM) are likely to be heard in state court,
company to work with stem cells, but the firmnot federal court, according to the Supreme Court
quickly collapsed when it couldn't raise the $100,000 indecision in Florida Prepaid Postsecondary.Although
upfront fees the Wisconsin foundation [WARF]there may be a visceral reaction to lash out against
charged.Washburn's article did not mention an earlierpatents perceived to be overbroad, the cautionary
article by Loring and co-author Cathryn Campbell,tale of NTP v. RIM suggests that sometimes
entitled "Intellectual Property and Human Embryonicnegotiation is the better path for infringement
Stem Cell Research," which appeared in 311 Sciencedefendants. Further, Loring/Campbell mention the
1716 on March 24, 2006. Therein, Loring and Campbellpossibility of an interference with Plurion, although this
mentioned the changing royalty fees charged bymost likely would change only the identity of the
WARF in response to a "memo of understanding"owner of controlling patents. Separately, one recalls
(MOU) with the federal funding agency. Loringthat the Thomson patents are about creating stem
Campbell mentioned the "SBIR paradox" as to fundingcells from blastocysts; they are not about "cloning"
of small businesses, which may be a problem, but not[SCNT] technology. To date, traditional methods for
one associated with patent law.Both the Washburnstem cell separation from blastocysts have failed
and Loring/Campbell articles suggested that thewherein SCNT is involved. There may be a question
WARF/Thomson patents would pose a long-termof enablement as to the Thomson patents for cases
threat to stem cell science. Washburn noted theinvolving SCNT, which is where the holy grail of
position of the Foundation for Taxpayer andpatient-specific stem cell lines resides.As a general
Consumer Rights, based in Santa Monica, which urgesproposition, the state taxpayers underwriting efforts
California's stem cell agency to challenge thesuch as Proposition 71 have the expectation that
Wisconsin patents. In greater detail, the Santa Monicamoney will be used for research, not to litigate the
group stated: The stem cell institute faces a threatpatent positions of prior researchers. Extrapolating
from a foundation associated with the University offurther, state funding to achieve patent positions
Wisconsin [WARF], which claims that it is owedcould lead to a balkanization of research, in which
licensing fees because it holds patents on all humanentities from individual states (such as California, New
embryonic stem cells in the United States. John M.Jersey, Maryland, Illinois, Connecticut) are fighting one
Simpson stated: "This is an outrageous raid on theanother, rather than collaborating.Lawrence B. Ebert is
treasury of California based on over-reaching patents.a registered patent attorney located in central New
No other nation in the world recognizes them. TheyJersey. He holds a Ph.D. from Stanford, a J.D. from
are blocking vital research in the United States. I callthe University of Chicago, maintains a blog at
on the stem cell institute to challenge the patents'IPBiz.blogspot.com, and is the author of LESSONS TO
validity."Neither the Washburn nor Loring/CampbellBE LEARNED FROM THE HWANG MATTER:
articles discuss the possible research safe harborANALYZING INNOVATION THE RIGHT WAY,
created in the Hatch-Waxman Act and codified at 35published in the Journal of the Patent & Trademark
USC 271(e)(1). The breadth of this safe harbor wasOffice Society [88 JPTOS 239 (March 2006)]. Ezine
recently affirmed in the Supreme Court decision ofdraft submitted April 13, 2006.